New Delhi: Abortion by a woman without her husband’s knowledge and consent will amount to mental cruelty and a ground for divorce, the Supreme Court has held.

“Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.

Writing the judgment, Justice Thakker said: “The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure, can also amount to mental cruelty.”

The conduct must be much more than jealousy, selfishness, possessiveness, which caused unhappiness and dissatisfaction and emotional upset but might not be a reason for grant of divorce on the ground of mental cruelty.

Absence of intention
The Bench said: “To establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.”

The court said: “Mere coldness or lack of affection cannot amount to cruelty; frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.”

In the instant case, Suman Kapur was aggrieved at the decree of divorce granted against her by a trial court and confirmed by the Delhi High Court. Both courts gave a finding that her three abortions without the knowledge and consent of her husband, Sudhir Kapur, was a valid ground for divorce. Disposing of the appeal, the Bench noted that Sudhir Kapur got remarried on March 5, 2007 before the expiry of the period of 90 days for filing appeal before this court and a child was born from the second marriage.

“Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both courts, i.e. the trial court as well as the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in our opinion, the respondent-husband should not have remarried before the expiry of period stipulated for filing appeal. Ends of justice would be met if we direct the respondent to pay Rs. 5 lakh to the appellant.”

In a major boost to reservation, the Supreme Court on Thursday upheld the Constitution amendment law providing for 27 per cent quota for Other Backward Classes in IITs, IIMs and other Central educational institutions, but excluded the creamy layer from the benefit.

A five-judge Constitution bench cleared the Central Educational Institutions (Reservation in Admission) Act, 2006 providing for the quota, by a unanimous verdict.

The bench headed by Chief Justice K G Balakrishnan excluded the creamy layer among the OBCs from the quota benefit.

The court held that the Act does not violate the basic structure of the Constitution.

The verdict came on a bunch of petitions by anti-quota activists challenging the Act. They vehemently opposed government’s move saying caste cannot be the starting point for identifying backward classes.

The inclusion of creamy layer in the reservation policy was also questioned by the anti-quota petitioners.

With this judgment, the interim order of March 29, 2007 staying the implementation of the Act has been lifted.

In effect, the reservation policy can be put in place for the 2008-09 academic session.

The court held that the Constitution (93rd Amendment) Act, under which the government came out with the law providing 27 per cent quota in Centrally-aided institutions, was not violative of the basic structure of the Constitution.

All judges favoured periodic revision on the implementation of the 27 per cent quota.

The court ruled that the delegation of power to the Centre to determine OBCs was valid.

The parameter applied for identifying the creamy layer among the OBCs for jobs as per the office memorandum of September 8, 1993, will be applicable, the court said.

It also held as valid the exclusion of minority institutions from the ambit of quota under the Act.

Heard learned counsel for the applicant, learned AdditionalSolicitor General and counsel for the writ petitioners.

The parties are agreed that there would be a second counseling under the Scheme for admission for one year i.e. 2007-2008 to the students to the Post Graduate Course in the All India Quota and the following time schedule has been suggested and it is exhibited as below:

THE SCHEDULE FOR COMPLETION OF ADMISSION PROCESS FOR PG MEDICAL/DENTAL COURSES:

SCHEDULE FOR ADMISSION POSTGRADUATE COURSES ALL-INDIA QUOTA

Conduct of entrance examination 2nd Sunday of January

Declaration of result of qualifying 2nd week of February

exam/entrance examination

1st round of counseling/admission To be over by 15th

March*

Last date for joining the allotted Within 15 day fromcollege and course the date of allotment

of seat*

2nd round counselling for To be over by 9th

reallocation of seats & allotment May*

of seats from waiting list.

Last date for joining for By 16th May*

candidates allotted seats in

2nd round of counseling.

Commencement of academic session 31st May*

Last date up to which students 16th May*

can be admitted against vacancies

arising due to any reason.

*If last limit of above activities falls on a holiday, the subsequent working

The Supreme Court recently stated in Dr Jacob Mathew’s case (1) that in order to make a doctor criminally responsible for the death of a patient, it must be established that there was negligence or incompetence on the doctor’s part which went beyond a mere question of compensation on the basis of civil liability. Criminal liability would arise only if the doctor did something in disregard of the life and safety of the patient. Certain directions have also been given in the case.Negligence, in simple terms, is the failure to take due care and caution. It is a breach of a duty caused by the omission to do something which a reasonable person – guided by those considerations which ordinarily regulate the conduct of human affairs – should have done. It may also be doing something, which a prudent and reasonable person would not have done.

The essential components of negligence are: ‘duty’, ‘breach’ and ‘resulting damage’. These definitions are rather relative and can change with the circumstances. When trying to drag a person away from the clutches of an attacking animal, one cannot ask whether this would cause damage to the person’s limbs. Doctors can also be faced with similar contingencies. On finding an accident victim in a dangerous condition, a doctor may have to attempt a crude form of emergency surgery to try and save the person’s life. No negligence is involved in such cases.

Under the civil law, victims of negligence can get relief in the form of compensation from a civil court or the consumer forum. Here, the applicant only needs to prove that an act took place that was wanting in due care and caution, and the victim consequently suffered damage. There is a difference between civil and criminal negligence. However, in certain circumstances, the same negligent act may also be seen as criminal if it constitutes an offence under any law of the land.

Criminal negligenceAccording to Section 304A of the Indian Penal Code, causing death by doing a rash and negligent act attracts imprisonment for up to two years, or a fine, or both. The burden to collect evidence of criminal liability is upon the complainant. The accused person will be presumed innocent until proof beyond reasonable doubt is adduced by the prosecution; a mere preponderance of probabilities would satisfy the civil court. For these reasons, an act that is seen as negligent in a civil court need not necessarily be culpable negligence in the criminal court.

The main question in the above case was whether different standards could be applied to professionals (doctors) alone, placing them on a higher pedestal for finding criminal liability for their acts or omissions. The Court noted that as citizens become increasingly conscious of their rights, they are filing more cases against doctors in the civil courts, as also under the Consumer Protection Act, 1986, alleging ‘deficiency in service’. Furthermore, doctors are being prosecuted under Section 304A of the IPC (causing death of any person by doing any rash or negligent act which does not amount to culpable homicide) which is punishable with imprisonment for a term which may extend to two years. They are also being prosecuted under Section 336 (rash or negligent act endangering human life), Section 337 (causing hurt to any person by doing any rash or negligent act as would endanger human life) or Section 338 of the IPC (causing grievous hurt to any person by doing any rash or negligent act so as to endanger human life). The Court observed that allegations of rashness or negligence are often raised against doctors by persons without adequate medical knowledge, to extract unjust compensation. This results in serious embarrassment and harassment to doctors who are forced to seek bail to escape arrest. If bail is not granted, they will have to suffer incarceration. They may be exonerated of the charges at the end; but in the meantime they would have suffered a loss of reputation; often irreversible. The tendency to initiate such cases has therefore to be curbed.

Since the medical profession renders a noble service, it must be shielded from frivolous or unjust prosecutions. With this perspective in mind the Court went into the question as to what is actionable negligence in the case of professionals. The law now laid down is as follows:

1. A simple lack of care, an error of judgment or an accident, even fatal, will not constitute culpable medical negligence. If the doctor had followed a practice acceptable to the medical profession at the relevant time, he or she cannot be held liable for negligence merely because a better alternative course or method of treatment was also available, or simply because a more skilled doctor would not have chosen to follow or resort to that practice.

2. Professionals may certainly be held liable for negligence if they were not possessed of the requisite skill which they claimed, or if they did not exercise, with reasonable competence, the skill which they did possess.

3. The word ‘gross’ has not been used in Section 304A of IPC. However, as far as professionals are concerned, it is to be read into it so as to insist on proof of gross negligence for a finding of guilty.4. The maxim Res ipsa loquitur (Let the event speak for itself; no other evidence need be insisted) is only a rule of evidence. It might operate in the domain of civil law; but that by itself cannot be pressed into service for determining the liability for negligence within the domain of criminal law. It has only a limited application in trial on a charge of criminal negligence.

5. Statutory Rules or executive instructions incorporating definite guidelines governing the prosecution of doctors need to be framed and issued by the State and Central governments in consultation with the Medical Council of India (MCI). Until this is done, private complaints must be accompanied by the credible opinion of another competent doctor supporting the charge of rashness or negligence. In the case of police prosecutions, such an opinion should preferably from a doctor in government service.

6. Doctors accused of rashness or negligence may not be arrested simply because charges have been levelled against them; this may be done only if it is necessary for furthering the investigation, or for collecting evidence, or if the investigating officer fears that the accused will abscond.The Supreme Court has not stated, even now, that doctors can never be prosecuted for medical negligence. It has only emphasised the need for care and caution in prosecuting doctors in the interests of society. A certain amount of immunity or extra insulation is now allowed to them considering the noble service rendered by their fraternity and in view of the reports that complainants often use criminal cases to pressurise medical professionals and to extract unjust compensation.

This immunity is available only in criminal courts and not elsewhere. The principles laid down above may apply to other professionals like engineers and lawyers as well. The decision in Jacob Mathew’s case(1) is thus a landmark judgment though some of the principles mentioned therein have been mentioned in earlier judgments.

The present judgment, however, may give room for criticism that the court, vested with the power to interpret the written law has, instead, ventured to change the law by interpreting it the way it thought would be better for society. Since Section 304A refers only to rash or negligent acts, it is a doubtful proposition that mens rea (guilty intent) must be shown for establishing a case of criminal negligence . The interpretation reading in the prefix ‘gross’ before ‘negligence’ (the latter alone appears in Section 304A of the IPC) also attracts the same criticism.

One has to hope that professionals will rise to the occasion and start discharging their functions with more care and responsibility rather than trying to hide under the shield provided by the court. Let not the profession be emboldened by the new shield, and turn less careful and inhumane in their dealings and treatment to the patients who approach them. If this happens, that will be a sad day for suffering patients. The new judgment, reading in many things not in the written law, would result in a serious blow to their rights. While it is necessary to save doctors treading the righteous path, it is also necessary to take to task those violating the oath that they took. Immunity to this group means suffering for vulnerable patients.

Reference:1. Jacob Mathew v. State of Punjab and another – 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005.

On January 19, 1995 we learnt that Justices Kuldip Singh and B. L. Hansaria of the Supreme Court of India passed a judgement which forces doctors em- ployed in prisons to participate in exe- cution by hanging and thus violates medical ethics. This judgement was passed on a petition in the public interest against provisions, in the Punjab Jail Manual, on keeping the body of a con- demned prisoner hanging for half an hour after falling from the scaffold. It was argued that such provision and practice were inhuman and barbarous.

The Judges ruled that the purpose of hanging is to execute the prisoner, the duration of hanging being immaterial. The prisoner should only hang till his/her body became lifeless.

The second part of the ruling orders the doctor employed by the jail authorities to examine the body every few minutes after the drop. As soon as the doctor diagnoses death, the body must be brought down.

Violation of medical ethics

This judgement makes the doctor a direct participant in the judicial execution of a human being. On occasion, the doctor will have to tell the jail authorities that the person is still alive, knowing that such information will be used only to continue hanging the body till the person dies. The ruling also implicitly orders the doctor not to resuscitate the condemned prisoner who remains alive after the drop.

These requirements violate medical ethics: (a) By providing information that leads directly to death, the doctor know- ingly acts to cause death of a person. (b) For a doctor to remain present and refrain from resuscitating a person in danger of losing his life contravenes medical ethics, (c) The judgment orders the doctor to discriminate against the prisoner simply because the Court has condemned him/her to die. Whilst the Courts have full authority to punish a prisoner with death, they cannot make a doctor discriminate against the condemned prisoner. For the doctor, a prisoner, like any other individual, is to be helped when in danger of losing life.

Forum protests

The Forum for Medical Ethics Society wrote to the Chief Justice, Supreme Court of India, on February 3, 1995 and requested him to ensure that the judgement not be implemented. The Forum expressed its willingness to assist the Court by making a detailed submission (including notes on practices and provisions in other countries that safeguard the ethics of doctors under such circumstances) after going through the full text of the judgment. A review was requested.

The Forum agreed with the need to abolish the procedure of leaving the body hanging for half an hour. It also accepts the need to examine the condemned person to determine death. It suggested that these repetitive examinations be conducted by a non-medical prison official trained to make the diagnosis of death. Once such a diagnosis is made, the body can be taken to the doctor for final examination and certification of death.

The Supreme court rejected Forum’s request. Mr. Raj Gopal, Assistant Reg- istrar of the Supreme Court of India replied (letter 321/90/Sc/PILC dated April 1, 1995): “I am directed to say that The Forum for Medical Ethics Society not being a party to the proceed- ings, no action can be taken on the matter.”

This is a response expected of a bureaucrat. It uses a technical point to dodge a vital issue. The Honorable Judges of the Supreme Court could, if they wished, modify their judgement in the public interest. If necessary they could have converted our letter into a petition.

Amar Jesani,310, Prabhu Darshan, S. Sainik Nagar, Amboli Andheri, Bombay 400 058. He is a member of the editorial team of Medical Ethics. He is also the Coordinator of Centre for Enquiry into Health and Allied Themes (CEHAT), Bombay.